There is much talk of judicial "empathy" nowadays. Rightly so. It's an important issue. Upon which reasonable views have been -- and continue to be -- expressed on both sides.
But let me attempt to recharacterize the debate. At least in part. And to simultaneously reveal a little of what I think judging is (at least partially) about. 'Cause in my mind, it's not just "balls and strikes". It's a fair piece different than that -- even at the pedestrian, nonconstitutional (non-Supreme Court) level.
I'm inclined to address this issue not because of anything that's going on in the Sotomayor confirmation hearings today (though that's certainly on my mind), but rather due to a seemingly easy decision published today by the Court of Appeal that got me thinking about the subject. Which is somewhat surprising, in part because the decision is -- on many levels -- so obviously right. (Indeed, for that reason, it's per curiam, and doesn't even have a formal author.)
The opinion is about the relatively pedestrian issue of whether the appellant timely filed his notice of appeal. Not abortion, gun control, or anything like that. Something simple. The facts are pretty straightforward too. Plaintiff lost an anti-SLAPP motion (in part) on December 17, 2008 (an immediatebly appealable order), defendants served a notice of entry of that order on December 22, 2008, and plaintiff filed a notice of appeal on March 27, 2009. Everyone admits that's well more than 60 days after the December 22nd date, and hence the appeal is time-barred, unless an exception applies.
Here's the complexity. Plaintiff filed a motion for reconsideration on January 6, 2009. That generally extends the date to appeal (pursuant to Rule 8.108) until after the motion is resolved. The motion for reconsideration here wasn't denied until March 19, 2009, which generally would make the plaintiff's appeal -- which was filed later that same month -- timely.
Except for one thing. When plaintiff filed his motion for reconsideration, he forgot to include a declaration. A declaration that's required for such motions pursuant to Section 1008(a) of the CCP. When defendants pointed this out (in their opposition), the plaintiff filed a belated declaration that repeated under penalty of perjury all that he'd already said in his moving papers. The trial court accepted the late declaration -- since defendants incurred no prejudice of its absence -- and denied the motion on the merits.
But here's the thing. Rule 8.108(e) only extends the time to appeal if a "valid" motion for reconsideration has been filed. By "valid", we don't mean "meritorious", but the Advisory Committee says that we instead mean a
"motion or notice complies with all procedural requirements." Plaintiff's motion didn't do so, since it lacked the required declaration. Hence the Court of Appeal holds -- unanimously -- that the appeal's untimely and must be dismissed.
This makes perfect sense. It's a cogent and fair reading of the statute. There's ample support for such a conclusion. Reasonable jurists could indeed so hold.
And I'd have gone the other way.
Why? Not because I have "empathy" for the plaintiff in any way in which that term is currently being bandied about. Yes, I have some traditional empathy for the attorney who failed to file the declaration, as we've all made mistakes. But that's not really what's motivating me -- and certainly not "empathy" for a particular party (as I could care less whether Branner or the Regents win this lawsuit, an issue on which I truly have no opinion whatsoever).
I do think, however, that there's a judgment call that should be made here, and that that's an important part of being a judge. Yes, the plaintiff screwed up. Yes, he technically failed to comply with Rule 8.108, and yes, the Advisory Committee's comments tend to suggest that he might therefore be viewed not to have filed a "valid" motion for reconsideration.
But that is not -- or should not -- be the end of the matter. There's something more there for me. To me, a sage judge needs to at least ask: Should that error matter? Is it fair and equitable, in light of the law, that the appeal here be deemed untimely?
Sure, you can respond -- as many judges undoubtedly would -- "Yes it is. He struck out. I just call 'em as the law requires." But, respectfully, the law's not a strike zone. We've got plenty of doctrines that may well come into play here and, to continue the analogy, may well support a conclusion that the plaintiff got just enough of a piece of the ball to foul it off.
What about, for example, the doctrine of "substantial compliance"? Yeah, he didn't submit a declaration, and that was required. But does that omission matter? He filed everything else. His assertions were contained in full in the memorandum. Why isn't that good enough? After all, Section 1008(e) also expressly requires -- in the same sentence as the declaration requirement -- that a motion for reconsideration contain the name of the judge who decided the prior motion. Do you really mean to tell me that if the moving party forgot to name the judge, but otherwise filed the motion entirely correctly (an in front of the right judge), we'd hold that there was no "valid" motion and hence an appeal was time-barred?
I know, I know. Some people will say: "But the statute is clear." But we've got plenty of common law doctrines -- including but not limited to substantial compliance -- that expressly (and rightly) depart from such a facile rejoinder. One need not even rely on the common law. In California, for example, we've got the Legislature's pronouncement in Section 3528 of the Civil Code that the law is to prefer substance over form; in Section 3532 that no one is required to perform an idle act; and in Section 3535 that the law disregards trifles. Any or all of these statutory dictates could easily be viewed to cover the omission here. Yes, it would have been nice if the plaintiff had included a declaration. Sorry about that. But the principal purpose of Section 1008 was satisfied even without it, and surely was satisfied by its (admittedly belated) inclusion. That should be enough.
Am I willing to call any deficiency a "trifle" or "idle act"? No way. You miss an important deadline -- a statute of limitations, a notice of appeal, etc. -- even by a day and you're out. You fail to file a piece of paper at all, or an important component of a motion on time (resulting in prejudice to a party or the court), and I'm totally on board for booting you.
But it takes judgment -- call it "empathy" if you want -- to decide what's what. To me, the lack of a declaration here wasn't important. The purpose of Section 1008 had been served, and the fact that there was no prejudice even alleged -- and that even the unfriendly trial court didn't boot the motion on procedural grounds -- is only further support for the fact that the deficiency shouldn't matter.
And I'd say that even if I thought Branner should lose, and even if I thought his lawsuit was crap. I'd still be of the belief that certain errors are excused -- or at least not given dispositive weight -- in circumstances in which human judges faithfully conclude that the purposes of a statutory scheme have been satisfied. When, as here, a process can fairly go forward notwithstanding a msitake, we should ignore the mistake. Whether that's due to "empathy" for the error-prone litigant (or his counsel) or otherwise, that's the way the system should work.
Which is, in the end, perhaps just another way of saying that robots wouldn't make good judges. That there's something necessarily and beneficially human about being a judge. At least as I would have them be.
Maybe a QuesTec system would work in baseball. But, in my mind, it doesn't work in judging. Yes, some calls -- maybe most -- are obvious, straight down the middle, and easy to decide. But when it matters, that's exactly when we need human judges. With an understanding about justice that's different than merely reciting text or original meaning.
Because, as in this case, there's often more -- sometimes much more -- to a game than what may first appear. For this reason, I think this case should have come out the other way. And that understanding why the case should -- and why it didn't -- may enlighten the debate about what qualities make for a superior judge. Even in those cases in which the result might initially seem crystal clear.